IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20160225

Docket: M71410

Registry:
Nanaimo

Between:

Jamie Leach

Plaintiff

And

Hayley Jesson and
Linda Jesson

Defendants

Before:
Master Dick

Oral Reasons for Judgment

In
Chambers

[1]            
THE COURT: I am prepared to give judgment right now.

[2]            
This is the plaintiff’s application, where he seeks production of a
redacted copy of the Nanaimo Regional General Hospital and ambulance records of
the defendant for November 20, 21, 2012. The documents are entitled to be
redacted and edited by defendants’ counsel. Only portions relating to:

a)       the
cause of the accident;

b)       the
severity of the collision;

c)       events
leading up to the collision and subsequent to it;

d)       the
nature and extent of the defendants injuries, including her ability to recall
the collision and observe events after it;

are sought to be produced.

[3]            
This action arises from a motor vehicle accident that occurred
November 20, 2012 in Nanaimo, where the plaintiff was a passenger and was
rear-ended by a vehicle driven by the defendant.

[4]            
The notice of civil claim was filed January 6, 2014, and the
response to civil claim filed June, 2014. The matter is set for trial
April 18, 2016. Liability has been admitted with respect to this accident
by the defendant. Quantum of damages will be at issue in the trial.

[5]            
There is evidence before the court from the defendant that her vehicle
rear ended the plaintiff’s and was travelling between 50 to 55 kilometres per
hour at the point of impact. This evidence is in the defendant’s examination
for discovery transcript.

[6]            
There is also evidence that the defendant was charged with a motor
vehicle offence, passing where there is a double yellow line, which offence occurred
just prior to the motor vehicle accident.

[7]            
There are two expert reports relating to the injuries of the plaintiff;
one of which is an independent medical examination produced by the defendant.
Both reports indicate the plaintiff sustained injuries as a result of the
accident. One such report indicates the plaintiff may have suffered a mild
traumatic brain injury in the accident. There have been documents exchanged
that indicate the severity of the impact, the nature of the injuries sustained.
The police report indicates there is also a witness to the defendant’s driving
pre-accident.

[8]            
In ordering disclosure of these records, I have to be cognizant of the
privacy issues for this defendant, as well as the rights of the plaintiff to
have the best evidence available to him in order to pursue his claim in this
matter.

[9]            
More important is knowing that the scope of disclosure sought is
proportionate to the matter in issue. The plaintiff indicates they expect the
records to contain information from the defendant as to how the collision
occurred, the speeds involved, a description of the force on impact, as well as
information about whether or not the plaintiff actually did leave his vehicle
after the impact. He argues that this information is relevant to the injuries
sustained by the plaintiff.

[10]        
In this application, I need to know why that information is relevant and
whether it will properly advance the plaintiff/applicant’s case or damage the
case of the defendant. I need to look at the issues of privacy and
proportionality rules in looking at this disclosure.

[11]        
It is my opinion that the production of the defendant’s hospital records
do not relate to a matter in question in this action, because liability for the
accident has been admitted. Even if the argument is the injuries of the defendant
are relevant to the significance of the impact and statements to third parties
relate to how the accident occurred, here liability is admitted.

[12]        
I agree with the reasoning in the Gulamani v. Chandra and Chandra
case, a 2009 decision of Madam Justice Arnold-Bailey, reported at 2009 BCSC
1487, where Madam Justice Arnold-Bailey, in a case where liability was denied, stated
at paragraph 44, the defendants’ “medical records relating to injuries
allegedly sustained in the accident do not relate to a matter in question in
the action. The injuries of the defendant are irrelevant to liability for the
accident and the damages suffered by the plaintiff.”

[13]        
No case was cited indicating when and how hospital records of the defendant
should be producible, where liability is admitted. If I am wrong on the
relevance of these documents in this matter, I find that the defendant’s
hospital records should remain private, as it has not been established to my
satisfaction that an invasion of her privacy is necessary in this case.

[14]        
The argument that the plaintiff should have the documents as of right
fails the proportionality argument, as the privacy rights should not be
abridged without cogent reasons to do so. I do not find there are any cogent
reasons to order production of these records, especially since liability is
admitted and there is other evidence available to indicate the severity of the
collision and the injuries sustained by the plaintiff.

[15]        
I therefore decline to exercise my jurisdiction to order production of
the defendant’s NRGH records from November 20 and 21 in this matter.

[16]        
I would be prepared to just order that both of you bear your own costs,
given the outcome of the two applications.

[17]        
MS. HUGGINS:  I’m going to take no position if my friend is agreeable.

[18]        
MR. DE TURBERVILLE:  That’s fine.

[19]        
THE COURT:  Thank you.

“Master
Dick”